Prabha Padmanabhan v. Nitin Krishnankutty Nair

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944 ``` ``` TR.P(C) NO. 513 OF 2021 ``` ``` IN OP 1227/2021 OF FAMILY COURT,ERNAKULAM ``` ## `PETITIONER/RESPONDENT:` ``` PRABHA PADMANABHAN, AGED 39 YEARS, D/O. PADMANABHAN, PADMAPRABHA, PURAYAM KUMARATH HOUSE, P.O, KUTTANCHERY, ERUMAPETTY, THRISSUR DISTRICT - 680583. ``` ``` BY ADVS.M.R.VENUGOPAL DHANYA P.ASHOKAN ``` ## `RESPONDENT/PETITIONER:` ``` NITIN KRISHNANKUTTY NAIR S/O. KRISHNANKUTTY NAIR, MANDARAM, PK NAIR PIPE LINE CROSS ROAD, PALARIVATTOM, ERNAKULAM DISTRICT - 682025. ``` ``` BY ADVS.LEKSHMI S.SEKHER ATHIRA A.MENON ``` ``` THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08.06.2022, ALONG WITH Tr.P(Crl.).70/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)No.513/2021& Tr.P.(Crl)No.70/2021 ``` ``` -:2:- ``` ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944 ``` ``` TR.P(CRL.) NO. 70 OF 2021 ``` ``` IN MC 355/2021 OF FAMILY COURT,THRISSUR ``` ## `PETITIONER:` ``` NITIN KRISHNANKUTTY NAIR AGED 44 YEARS S/O. KRISHNANKUTTY NAIR, MANDADRAM, PK NAIR PIPE LINE CROSS ROAD, PALARIVATTOM, ERNAKULAM, PIN- 682 024. ``` ``` BY ADVS.LEKSHMI S.SEKHER ATHIRA A.MENON ``` ## `RESPONDENTS:` ``` 1PRABHA PADMANABHAN, AGED 39 YEARS, D/O. PADMANABHAN PADMA PRABHA, ERUMAPETTY, KUTTANCHERY P.O., THRISSUR, PIN-680 584. ``` ``` 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. ``` ``` BY ADVS.ADV. VENUGOPAL.M.R DHANYA P.ASHOKAN(K/001671/2000) ``` ``` THIS TRANSFER PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08.06.2022, ALONG WITH Tr.P(C).513/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Tr.P.(C)No.513/2021& Tr.P.(Crl)No.70/2021 ``` ``` -:3:- ``` Dated this the 8[th] day of June,2022 ## **C O M M O N O R D E R** As the transfer petitions are filed seeking transfer of the proceedings instituted by the wife and husband, as against each other, they are being disposed of by this common order. The parties are, for the sake of convenience, referred to as per their status in Tr.P(C) No.513/2021. 2. The petitioner – wife – has filed Tr.P.(C) No.513/2021 against her husband – respondent – under Section 24 of the Code of Civil Procedure,1908(in short, ‘C.P.C.’), seeking to transfer O.P No.1227/2021 (Annexure-I) from the Family Court, Ernakulam to the Family Court, Thrissur. The respondent has filed Tr.P(Crl.) No.70/2021, seeking to transfer M.C. No.355/2021(Annexure-II) from the ``` Tr.P.(C)No.513/2021& Tr.P.(Crl)No.70/2021 ``` ``` -:4:- ``` Family Court, Thrissur to the Family Court, Ernakulam. 3. The petitioner's case, in brief, in Tr.P(C) No.513/2021 is that; she is the wife of the respondent. They have two children, who were 15 and 11 years of age, born in their wedlock. Due to the matrimonial cruelty that was meted out on her, she was constrained to file M.C. No.355/2021 (Annexure-II) before the Family Court, Thrissur, seeking an order under Section 125 of the Code of Criminal Procedure, 1973. The respondent for the sole purpose of harassing the petitioner, with ulterior motives filed Annexure-I, seeking a decree of divorce. The petitioner does not have the means to maintain herself. Her parents are old and infirm. There is no persons to chaperone her from Erumapetty to Ernakulam, to defend Annexure-I. Hence, the transfer petition. 4. The respondent’s case, in brief, in Tr.P(Crl.) No.70/2021 is that; due to the harassment that has been meted out on him, he has filed Annexure-I. The ``` Tr.P.(C)No.513/2021& Tr.P.(Crl)No.70/2021 ``` ``` -:5:- ``` petitioner has without any justifiable reason deserted the respondent and the children. She has not even bothered to enquire about the children, who are studying in Ernakulam. The respondent is suffering from back pain and is advised rest. Therefore, Annexure-II may be transferred from Family Court, Thrissur, to the Family Court, Ernakulam. 5. Heard; Smt. Dhanya P. Ashokan, the learned counsel appearing for the petitioner/wife and Smt. Lekshmi S. Sekher, the learned counsel appearing for the respondent/husband in Tr.P.(C)No.513/2021. 6. The petitioner has filed Annexure-II before the Family Court, Thrissur, seeking an order of maintenance from the respondent, since she is unable to maintain herself. The respondent has filed Annexure-I, seeking a decree of divorce. 7. The law with respect of transfer of proceedings, particularly matrimonial disputes, is no longer res integra, in view of the categoric declaration ``` Tr.P.(C)No.513/2021& Tr.P.(Crl)No.70/2021 ``` ``` -:6:- ``` of law by the Hon'ble Supreme Court in **Sumitha Sing V. Kumar Sanjay and another** [(2001)10 SCC 41)], **Mona Aresh Goel V. Aresh Satya Goel** [(2000) 9 SCC 255], **Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap** [AIR 2016 SC 3584], **Santhini V. Vijaya Venkatesh** [2017 (4) KLT 415 (SC)] **Valsal Nisha v. Rajesh Soman Nair** [2020(8) KLR 475]. The Hon’ble Supreme Court has held that it is the convenience of the woman and children that has to be looked into, while ordering the transfer of a case from one Court to another. 8. The petitioner is aged 39 years and the respondent is aged 44 years. On a comparison of the relative hardship of the parties, the law laid down in the afore-cited decisions and that both the cases have to be tried by the same Court, I am of the firm view that, the convenience of the woman has to be given due weightage and preference, especially when she alleges penury and the custody of the children are not ``` Tr.P.(C)No.513/2021& Tr.P.(Crl)No.70/2021 ``` ``` -:7:- ``` involved. Moreover, if the cases are consolidated and jointly tried by the same court, it would save the precious judicial time and avoid conflict of decisions. 9. In the above factual on a background, consideration of totality of the facts and circumstance of the transfer petitions and the law on the point, I am of the definite view that Tr.P.(C)No.513/2021 is to be allowed, in exercise of the discretionary powers of this Court under Section 24 of the C.P.C. and Tr.P. (Crl.)No.70/2021 is to be dismissed. In the result, - (i) Tr.P(Crl.) No.70/2021 is dismissed, and - (ii) Tr.P(C) No.513/2021 is allowed, by ordering the transfer of O.P.No.1227/2021 from the Family Court, Ernakulam to the Family Court, Thrissur. - (iii) The parties would be at liberty to move the Family Court to seek for consolidation and joint trial of the proceedings between them. ``` Tr.P.(C)No.513/2021& Tr.P.(Crl)No.70/2021 ``` ``` -:8:- ``` - (iv) The Registry shall forthwith forward a copy of the order to the Family Court, Ernakualm, with instructions to transmit the records in Annexure-I to the Family Court, Thrissur. - (v) The Family Court, Thrissur shall, immediately on receipt of the records in Annexure-I, post the case along with Annexure-II. Sd/- ## **C.S.DIAS,JUDGE** DST/08.06.22 //True copy/ P.A.To Judge ``` Tr.P.(C)No.513/2021& Tr.P.(Crl)No.70/2021 ``` ``` -:9:- ``` ## `APPENDIX OF TR.P(CRL.) 70/2021` ``` PETITIONER ANNEXURES ANNEXURE A1TRUE COPY OF OP NO.1227/2021 FILED DATED 23.6.2021 BEFORE THE HONOURABLE FAMILY COURT ERNAKULAM. ANNEXURE A2TRUE COPY OF M.C.NO.355/2021 FILED DATED 10.9.2021 BEFORE THE HONOURABLE FAMILY COURT, THRISSUR. ANNEXURE A3MEDICAL CERTIFICATE DATED 18.10.2021 ISSUED BY HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA TO THE PETITIONER. ANNEXURE A4TREATMENT ADVICE DATED 18.10.2021 ISSUED BY HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA TO THE PETITIONER. ``` ``` RESPONDENT’S EXHIBITS: NIL ``` ``` Tr.P.(C)No.513/2021& Tr.P.(Crl)No.70/2021 ``` ``` -:10:- ``` ## `APPENDIX OF TR.P(C) 513/2021` ``` PETITIONER ANNEXURES ANNEXURE ITRUE COPY OF THE O.P NO. 1227/2021 ON THE FILE OF THE FAMILY COURT, ERNAKULAM. ANNEXURE IITRUE COPY OF M.C. NO. 355/2021 ON THE FILE OF THE FAMILY COURT, THRISSUR. ``` ``` RESPONDENT’S EXHIBITS: NIL ```